Formalism (law)
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In the context of American law, the terms formalism and legal formalism can refer to both a descriptive theory of law and how judicial decisions are made as well as a form of judicial philosophy and legal reasoning. Legal formalism, both as a descriptive theory and a normative philosophy, views law as a distinct political institution determined by legal rules derived from authoritative sources, like constitutions and statutes. The term formalist can be used to describe a proponent of some form of formalism.[1][2]
Judge and law school lecturer Richard Posner, law professor Edward Cantu, and politics professor Alan Ryan have contrasted formalism with pragmatism, which understands law as produced by specific social contexts and focuses on the consequences of judicial decisions.[3][4][5]
Background
The Legal Information Institute, a project of the Cornell Law School, defines legal formalism in the following way in its online legal dictionary and encyclopedia:[1]
| “ | A theory that legal rules stand separate from other social and political institutions. According to this theory, once lawmakers produce rules, judges apply them to the facts of a case without regard to social interests and public policy. ... [The] theory can be understood in a descriptive way, prescriptive way, or both ways at once.[6] | ” |
| —Legal Information Institute, "Legal formalism"[1] | ||
According to a 2012 article on legal formalism written by law and philosophy professor Lawrence B. Solum and published in his online Legal Theory Lexicon, legal formalism focuses on legal authority and determining what the law requires through rules and texts:[2]
| “ | The core idea of formalism is that the law (constitutions, statutes, regulations, and precedent) provide rules and that these rules can, do, and should provide a public standard for what is lawful (or not). That is, the core of legal formalism entails a commitment to a set of ideas that more or less includes the following:
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| —Lawrence B. Solum, "Legal Theory Lexicon: Formalism & Instrumentalism" (2012)[2] | ||
According to Solum, legal formalism is associated with originalism in the context of constitutional law and with plain meaning theory in the context of statutory interpretation.[2]
See also
External links
Footnotes
- ↑ 1.0 1.1 1.2 Legal Information Institute, "Legal formalism," accessed October 7, 2017
- ↑ 2.0 2.1 2.2 2.3 Legal Theory Lexicon, "Legal Theory Lexicon: Formalism & Instrumentalism," August 12, 2012
- ↑ University of Chicago Law Review, "Legal Pragmatism Defended," 2004
- ↑ Lewis & Clark Law Review, "Posner's Pragmatism and the Turn Toward Fidelity," March 20, 2012
- ↑ The New York Times, "The Legal Theory of No Legal Theory," September 14, 2003
- ↑ 6.0 6.1 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
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